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If the state is attempting to revoke your driver’s license, call Tulsa criminal defense attorney Stephen Cale at 918-277-4800. With your free initial consultation. You also get a free defense strategy plan.
In August 2013 a city of Glen pull police officer stopped the man in his truck and arrested him for driving under the influence. According to the officer’s affidavit a notice of revocation, the officer observed the man’s vehicle swerving between lanes and traveling north straddling the center lane. He also stated that the man was unsteady on his feet, had read watery eyes, and smelled of marijuana. The officer sign the affidavit under penalty of perjury and stated that he told the man that he arrested of the implied consent test request and personally gave him a copy. The man refused the test.
The Department of Public Safety revoked the man’s driver’s license. The man requested an administrative hearing. The effect of that request was that it stayed the revocation. For some reason neither the man nor his attorney appeared at the hearing, which was held about six months later. They should have had the best Tulsa criminal defense attorney.
A week after the hearing the DPS hearing officer entered an order sustaining the revocation. The order read that after examining the records in the case he found proper notice of hearing was served upon the man. Further the order stated that because of the failure to participate in the hearing the affidavit of the arresting officer stating that the rest he refused to submit to chemical testing after being arrested upon probable cause was grounds for taking his statements is true. Consequently the man’s driving privileges were revoked for one year.
In April 2014 the defendant filed a cash bond to stay the order and follow petition to set aside in District Court. This petition alleged that DPS felt comply with statutory law and that the affidavit felt comply with statutory law. The parties agreed to delay the’s records review until decision in unrelated appeal. At a later hearing DPS argued that the defendant did not exhaust his administrative remedies as required by statute because he failed to participate at the administrative hearing and therefore was not entitled to a hearing on the merits.
The defendant argued that the officer’s affidavit was facially deficient pursuant to a lineage of cases from the Oklahoma court of Civil Appeals. He also argued that the case supported the fact that he exhausted his a ministry of remedies. The defendant argued that despite the lack of his presence at the Ministry of hearing, DPS had to met the affidavit into evidence.
According to Tulsa criminal defense attorney Stephen Cale, the trial court asked DPS to respond since there was a facially deficiency on the affidavit. The trial court held that because the defendant does not appear administrative hearing, he did not exhaust is a ministry of remedies pursuant to law.
The trial court issued an order that included three rulings. First the court said that there was no reason at the time of administrative hearing for the Department of Public Safety to consider the officer’s affidavit as facially invalid. Secondly, the defendant did not exhaust his administrative remedies. And thirdly, statute at issue does not refer to any supplemental affidavit issue.
On appeal, the appellate court first talked about the standard a review. It said that to resort to the courts, a person must exhaust his statutory remedies. That is a jurisdictional prerequisite. A trial court’s legal rulings are reviewed de novo. That means non-differential, pulmonary and independent review. On appeal from orders of implied consent revocations, appellate court will not reverse the District Court’s findings unless they are erroneous as a matter of law or lack sufficient evidentiary foundation.
The state must prove four elements when seeking to sustain the merits of the revocation based on refusal to submit to test for alcohol. The first element is the officer had reasonable grounds to believe the person had been operating was an actual physical control the vehicle upon public roads, or other public place while under the influence of alcohol. A hearing on the merits is rendered after argument an investigation, and when it’s determine which party is in the right. This is distinguishable from a judgment that is rendered upon some technical or procedural point or by default and without trial. The best Tulsa criminal defense attorney is near you.
The appellate court agreed with the defendant. It said that the statutes establish a mandatory procedure for omitting an officer sworn report the administrative hearing. Further that statute applies regardless of whether the licensee or counsel appear at the hearing. At any rate, the officer sworn report must meet the basic statutory requirements for DPS to revoke a drivers license.
The word shall is generally a mandatory directive or command. The word deemed means to hold or consider or treat as if true. The common meaning of absent is not present or not in its place. Facials an adjective meaning of relating to or on the face. When construing a statute which has been amended the appellate court takes into consideration that the legislature may have intended either to affect a change in the list existing law or to clarify that which previously appeared doubtful. The exact intent is ascertained by looking at the circumstances surrounding the amendment.
As Tulsa criminal defense attorney Stephen Cale explains, a waiver is defined as the voluntary or intentional relinquishment of a known right. No one can be bound by waiver of one’s rights unless it’s made with full knowledge of the rights and tended to be waived. At bare minimum, constitutionally adequate notice must apprise person of the opposing party’s demands and what will result upon default.
In a 2015 case the court reversed the trial court’s decision that an officer’s facially deficient sworn report cannot be cured by supplemental swarm report. It so held because it was no due process or opportunity to be heard. After find the swarm report is an evidentiary issue, the court held because supplemental swarm report not been served on the licensee attorney more than 30 days before the hearing, then that two process rights were violated.